Citation Nr: 1039905
Decision Date: 10/25/10 Archive Date: 11/01/10
DOCKET NO. 06-32 574 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York, New
York
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder, to include posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Cryan, Counsel
INTRODUCTION
The Veteran served on active duty from September 1965 to December
1968.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from February and March 2006 rating decisions by the
Department of Veterans Affairs (VA) Regional Office (RO) in New
York, New York that denied the Veteran's application to reopen a
previously denied claim of service connection for PTSD and denied
entitlement to service connection for PTSD. A May 2008 Board
decision reopened the claim and remanded it for additional
development.
The Veteran testified at a hearing before the Board in October
2007.
As the Board is obligated to construe a claim for an acquired
psychiatric disorder liberally, the claim for PTSD has been
recharacterized as it appears on the cover page of the instant
decision. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope
of a mental health disability claim includes any mental
disability that may reasonably be encompassed by the claimant's
description of the claim, reported symptoms, and the other
information of record).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, D.C. VA will notify the appellant
if further action is required.
REMAND
A review of the claims file reveals that a remand is once again
necessary before a decision on the merits of the claim can be
reached.
Service connection for PTSD requires that there be medical
evidence diagnosing the condition in accordance with 38 C.F.R. §
4.125(a) (2009); a link, established by medical evidence, between
current symptoms and an in-service stressor; and credible
supporting evidence that the claimed in-service stressor actually
occurred. 38 C.F.R. § 3.304(f) (2009). In addition, in cases
involving claims of personal assault, evidence from sources other
than the appellant's service records may corroborate the
Veteran's account of the stressor incident. 38 C.F.R. §
3.304(f)(3) (2009).
The Veteran contends that he suffers from PTSD as a result of a
sexual assault which occurred while he was in service. He
indicated that he did not report the incident but he sought
treatment for hemorrhoids following the incident.
The Veteran has not been sent the necessary notice, in compliance
with 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b), that relates
directly to his claim for service connection for PTSD. The Board
notes that the RO generally advised the Veteran of the
evidence/information required to substantiate a claim for
entitlement to service connection. However, the Veteran should
be specifically informed of the type of information or evidence
necessary to substantiate a claim of service connection for PTSD,
as well as which evidence VA would seek to provide and which
information or evidence the Veteran was to provide. Quartuccio
v. Principi, 16 Vet. App. 183 (2002). This is especially
important in claims of service connection for PTSD based on
personal assault. Notice of the kind of evidence that might
corroborate the occurrence of a personal assault as noted in 38
C.F.R. § 3.304(f)(3) (2009) should be provided.
The Veteran's service treatment reports do not include any
complaints, findings, or treatment for any psychiatric disorders.
The private and VA treatment records since service include
various psychiatric diagnoses including PTSD, major depression,
major depressive disorder, and chronic adjustment disorder with
depression. Several of the Veteran's counselors have indicated
that the Veteran's diagnoses are related to a military sexual
trauma. In order to properly assess the Veteran's claim, a VA
psychological examination should be accomplished.
Accordingly, the case is REMANDED for the following action:
1. Review the claims file and ensure that
all notification actions required by 38
U.S.C.A. §§ 5102, 5103, and 5103A (West
2002 & Supp. 2009) are fully complied with
and satisfied. See also 38 C.F.R. § 3.159
(2009). Specifically, the Veteran should
be told to submit detailed information
regarding his claimed in-service stressor,
including the dates, times, and location of
the claimed stressor, and the parties
involved. 38 U.S.C.A. § 5103(a) (West
2002). In addition, the Veteran should be
informed that in cases involving personal
assault, evidence from sources other than
the service records may corroborate the
Veteran's account of the stressor
incident(s). 38 C.F.R. § 3.304(f)(3)
(2009). He should be instructed regarding
the specific types of evidence that may be
used to corroborate personal assault. Id.
2. After completion of the above action,
the Veteran should be afforded a VA
psychological examination. A review of the
claims file should be accomplished. Prior
to the interview, all indicated studies,
tests and evaluations deemed necessary
should be performed, but should
specifically include psychological testing,
including tests to determine whether the
Veteran in fact now experiences PTSD. (The
examiner is advised that the Veteran
received various diagnoses including PTSD,
major depression, major depressive
disorder, and chronic adjustment disorder
with depression.) The examiner should also
determine whether the diagnostic criteria
to support a diagnosis of PTSD have been
satisfied. If the PTSD diagnosis is deemed
appropriate, the examiner should comment
upon the link between the current
symptomatology and any in-service stressor
reported by the Veteran. Consideration
should be given to evidence that might tend
to support or corroborate the occurrence of
a personal assault, such as evidence of
behavioral changes, etc. 38 C.F.R. §
3.304(f)(3). (If the examiner concludes
that an in-service personal assault led to
the development of PTSD, the evidence
relied on to conclude that the assault
occurred should be specifically noted.) If
another diagnosis is deemed appropriate the
examiner should specifically indicate
whether the diagnosis is more likely than
not (greater than 50 percent) related to
the Veteran's military service. The
examiner should reconcile his/her opinion
with the other medical opinions of record.
The report of examination should include a
complete rationale for all opinions
expressed.
3. After undertaking any other development
deemed appropriate, re- adjudicate the
issue on appeal. If the benefit sought is
not granted, the Veteran and his
representative should be furnished with a
supplemental statement of the case and
afforded an opportunity to respond before
the record is returned to the Board for
further review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).